Further Dilution of the Grave and Sudden Provocation Test?

 [For other posts on similar themes, see here]

The Supreme Court delivered an interesting judgment last month in Markash Jajara v. State of Assam & Anr. [Crl. Appeal No. 3405 / 2023, decided on 03.11.2023]. It was an appeal against conviction by the trial court and sustained High Court for murder, where the deceased was the son-in-law of the convict. There were no witnesses, and the case rested on evidence of persons who came to the post soon thereafter and recoveries of weapons. This included the daughter of the convict and wife of the deceased, who stated her father had confessed that he had killed her husband.

The Supreme Court did not acquit, but changed the conviction from one for murder to one for culpable homicide not amounting to murder. It did so being convinced that the acts of the convict were covered by the First Exception to Section 300 of the Penal Code 1860 stating that "culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death." An Explanation to this Exception states that whether the provocation was grave and sudden is a question of fact. What this means in the language of trial, is that the accused must claim this defence during trial by cross-examining witnesses, giving answers during the examination done not on oath, and lead defence evidence to establish that these facts existed.

What led the Court to conclude that there was grave and sudden provocation was the testimony of the wife and daughter, P.W.6, who stated in cross-examination that her father killed her husband because the latter was an alcoholic and used to quarrel with her and the appellant convict. This prompted the following observations: 

"16. It seems to us from the version of P.W.6 that the deceased was an alcoholic and he used to misbehave not only with his wife but also with her family members. This version deserves appreciation in its right perspective. Such being the conduct of the deceased, the appellant’s only concern was to protect the life and dignity of his daughter, who was his only child. Reading the evidence on record, it is perceived that the appellant just wanted to create some kind of psychological fear and restraint in the deceased’s mind, so that he could no longer assault or humiliate the appellant’s daughter. The appellant and the deceased were the only ones present in the house at the time of occurrence. The daily consumption of liquor by the deceased was an apparent factor that exhorted the appellant to assault the deceased not with an intent to commit his murder but only to force the deceased to mend his ways and mend his drinking problem. The appellant seemingly attacked the deceased without any intention to commit his murder. It was rather a crude attempt to forcibly change the deceased’s habits and help the appellant’s daughter to have peaceful and dignified life.

17. The appellant’s motive at best was to prevent the deceased from misbehaving with his daughter after consuming alcohol. The manner in which the occurrence appears to have taken place inside the house, does indicate that the appellant lost his self-control on account of persistent provocation and suddenly thrashed his son-in-law with the bamboo stick. It is a case where provocation seems to be brewing up since the deceased shifted to the appellant’s house. It acquired enormous gravity with each recurrence of humiliating stances of the appellant’s daughter. The fatal occurrence was seemingly the final culmination of loss of the power of self-control. The fact that the deceased was living as a `ghar javai’ with the appellant, sufficiently indicates that the appellant did not have any pre-meditated intention to commit the murder of his son-in-law. But for the continuous harassment of the appellant’s daughter by the deceased who was a habitual drunkard, the appellant would not have lost his senses suddenly. The simmering discontent of a frustrated and hapless father unfortunately led him to strike the deceased with a bamboo stick. The series of provocative acts attributable to the deceased indeed laid the foundation of sustained provocation." [Emphasis supplied]

With respect, the Court has resorted to rhetorical flourishes to try and elide over the serious gaps in the evidence when it came to successfully claiming the case was covered by the Exception to Section 300. This becomes clearer when we look at the High Court judgment which had been assailed. Reading the two together, it appears that besides the general statement that the deceased was an alcoholic, there was no evidence led to suggest: (i) that there had been any quarrel on the day of the incident, (ii) that the deceased had consumed alcohol on that day, (iii) that the appellant himself sought to claim that he killed his son-in-law because of some provocation in his statement made under Section 313 of the Code. The statement of the wife and daughter P.W. 6 was that "my father murdered my husband as he used to ill-treat me after consuming alcohol", which did not establish any quarrel or even consumption of alcohol on the day. 

A defence which rests on leading evidence through the trial was successfully invoked by the Court despite the sheer absence of such evidence on the record. Perhaps aware of this, the Court shifts its perspective to present us with a picture of a "frustrated and hapless father" nursing "simmering discontent" to justify its invocation of the Exception. There are two problems in this reasoning on display in Paragraph 17. 

First, at places the Court seems to suggest that the loss of self-control is what was 'sudden' ["... on account of persistent provocation and suddenly thrashed in son-in-law"]. This is to conflate the Exception of grave and sudden provocation with the separate Exception to Section 300 that covers 'sudden fights'. What had to be sudden here was not the act of the appellant, but the provocation of the deceased. [This point had been discussed on the Blog earlier]

Second, the Court resorts to a 'but for' reasoning to satisfy the chain of causation required to trigger the Exception ["But for the continuous harassment of the appellant's daughter ... the appellant would not have lost his senses suddenly."]. Unfortunately, 'but for' is not what the Exception requires, because it also allows for conclusions such as "but for the marriage of the couple, the accused would not have lost his senses". The but for test allows the chain of causation to be stretched too far back in time, rendering the suddenness of the provocation immaterial. This does not mean that Indian Courts do not consider past acts and apply so narrow a lens as to exclude everything but for the immediately proximate act. The law does account for persistent provocation to some extent, but requires that a chain of causation be established linking the past acts of the deceased to some immediate provocation. Such an approach was demonstrated in another recent decision of the Supreme Court, Dauvaram Nirmalkar v. State of Chhatisgarh [Crl. Appeal No. 1124 of 2022, decided on 02.08.2022].

Markash Jajara can be seen as opening the door for a "grave, persistent or sudden provocation" defence as opposed to a "grave, persistent and sudden provocation" defence. However, it is not certain that courts below will apply it in such a manner, given the weight of precedent favouring the restrictive view. It may remain confined to the unique facts that presented themselves before the Supreme Court in this case. Or rather, the willingness to arrive at a conclusion on the strength of motives despite the absence of necessary facts being proven by evidence.

Guest Post: Exception 4 to Section 300 - Element of 'Sudden Fight' Lost?

(This is a guest post by Harshit)

Introduction

Under the Indian Penal Code 1860 (IPC), exception four provides a defence of 'sudden fight' to murder. This defence finds its genesis in the common-law defence of mutual combat which reduced murder to manslaughter in cases where death was the result of an injury caused in a sudden fight where both parties were on an equal footing (with no party taking undue advantage of the other). Although the mutual combat defence has not survived in common law jurisprudence, sudden fight still finds its place in the IPC.

In this post, I critically analyse the interpretation of 'sudden fight', used in the exception to Section 300. First, I argue that the term should be interpreted considering the underlying assumption of presence of equal footing between the parties. Second, I argue that the Supreme Court of India's application of the exception goes against the very assumption of equal footing, and the Court has in many cases seemingly done away with the requirement of 'sudden fight' itself. Lastly, I conclude by arguing in favor of a statutory amendment to correct the position. 

The Defence of Sudden Fight: Rationale and Scope

This section establishes the underlying rationale behind the exception and draws the differences between the exceptions of sudden fight and that of provocation to determine the underlying assumptions and scope of the former. I then argue that the term sudden fight should only be interpreted to mean mutual provocation and blows from each side, as any alternative interpretations go against the underlying assumption of the exception.

Establishing the Rational and Assumptions Underlying the Exception

In Macaulay’s draft of the IPC, there was no mention of the mutual combat or sudden fight exceptions. I found it a strange omission considering that the mutual combat exception was very well established in common law jurisprudence at that time. Presumably, then, the sudden fight exception was added to the IPC by the Select Committee(s); unfortunately, since I have been unable to access records containing that Committee's deliberations, I cannot decisively comment on what might have been the rationale behind the inclusion. 

It can be argued that the doctrine of comparative liability that underlines the justification for other partial defences also operates as the underlying principle of the defence of sudden fight. The doctrine of comparative liability suggests that the wrongful conduct or consent of the victim has an effect on the balance of rights and responsibilities between the offender and victim, a result of which is mitigation or exoneration of the offender's liability. For example, in exception one to Section 300, the victim's conduct which provokes the offender acts as a mitigating factor. Similarly, in exception four, it is the element of sudden fight which acts as a mitigating factor and also justifies its inclusion as a separate defence in the IPC. 

After having established this rationale behind the exception, it is important to determine the extent of comparative responsibility of the victim envisaged by the exception of sudden fight. For this, it is imperative to look at the wording of the section given in IPC.

“Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner"

“Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault.”

The elements such as undue advantage or cruel manner points to an implication that the drafter envisaged the exception to be applied in only those cases where both the parties are situated on an equal footing, more or less. The explanation in the section further supports this argument by providing that it is immaterial as to who offers the provocation or commits the first assault. The explanation implies that the defence of sudden fight applies to only those cases in which both the parties are equally blameworthy for instigating the assault. It might be the case where one party starts the fight or offers provocation, but without the conduct of the other party, the fight would not have aggravated to an extent where injury is caused. So, there is an element of mutual provocation and aggravation when it comes to sudden fight, where blame cannot be apportioned to one party. 

The difference between exceptions one and four further substantiates the argument that parties need to be on an equal footing. The main difference between the two exceptions is that of a unilateral and bilateral provocation. While exception one requires provocation to be unilaterally given from the side of the victim, exception four provides for a bilateral provocation where every blow or word uttered constitutes a fresh provocation, and hence the blame of provoking another cannot be imposed on a single person. 

It can be concluded that exception four operates on an underlying assumption that parties to a fight need to be on an equal footing more or less and the blameworthiness for provocation cannot be attributed to only one party.

Meaning of the term 'Sudden Fight'

The term 'fight' does not find a definition in the IPC, but in common usage, the word is used to describe combat between two or more people. The definition of fight as combat between two persons can also be deduced from the common law defence of mutual combat which defines fight as “when parties come to blows or a combat ensues”. It is important that 'fight' is understood in this sense of a bilateral transaction, because any alternative understanding of the word would go against the assumption of the presence of equal footing and blameworthiness between parties. 

Further, it is also important to interpret 'fight' as something more than a verbal quarrel. It is because the usage of two different terms i.e., 'fight' and 'quarrel' in the section side by side suggests that the legislative intent was to treat the terms as mutually exclusive. As 'quarrel' has been defined as an altercation of words and gestures in Black’s Law Dictionary, it is thus clear that by adding 'fight', the framers implied something more than a mere quarrel. 

The Supreme Court in Sridhar Bhuyan v. State of Orissa (2004; 2J bench) rightly acknowledged the rationale and assumptions underlying the fourth exception and held that it should only be applied to those cases where parties stand on an equal footing and the entire blame cannot be attributed to one party. The court clearly distinguishes exception four from exception one, and so defined 'sudden fight' as “mutual provocation and blows from each side” and “combat between two and more persons whether with or without weapons”. The court also implied that the term suggests something more than a quarrel by linking the latter to 'verbal altercation'.

Lost Element of 'Sudden Fight': Analysing Indian Supreme Court Decisions

While the Supreme Court has mechanically reiterated the understanding of term 'sudden fight' as given in Sridhar Bhuyan, the standard judicial practice has been to forget this while applying the exception to different facts. Courts have applied the fourth exception to a significant number of cases that do not even involve an exchange of blows or any violent act by the victim. Even though the exception juxtaposes 'sudden quarrel' and 'sudden fight', courts have interpreted any sort of mutual exchange of words, gestures, or abuses, as 'sudden fight' to apply the exception.

One of the most egregious examples where the court wrongly applied the exception was Golla Yelugu Govindu v. State of Andhra Pradesh (2008; 2J bench). In this case, the accused killed his wife by inflicting two injuries using a sickle, after a quarrel between between them because her parents refused to give money which he demanded to buy an autorickshaw. There was no evidence to show that there was an attempt or threat of violence from the wife, but the court still applied the exception, ironically referring to the understanding in Sridhar Bhuyan. Applying the fourth exception in this case demonstrates a complete failure to distinguish between elements of 'fight' and 'quarrel'. 

Similarly, in K. Ravi Kumar v. State of Karnataka (2015; 2J bench), there was a verbal quarrel between a wife and husband on the issue of the wife accompanying her husband to his ill father’s house. The appellant purportedly lost mental control and stabbed his wife, and subsequently set her on fire, causing her death. Here, too, the court applied the fourth exception on the ground that the injury was inflicted without any premeditation as a result of a suddenly heated exchange of words. Again, there was no proof of any exchange of any form of violence by the wife.

In Surain Singh v. State of Punjab (2017; 2J bench), the appellant-accused, while being in the court premises, took out a kirpan and inflicted injuries upon the complainant and his relatives due to which the relatives of the complainant died. Despite the fact that the injury was inflicted upon a mere quarrel and there was no exchange of blows from the other side, the court upheld the application of exception; again, while quoting Sridhar Bhuyan.

Another case is Ranbir v. Delhi (2019; 2J bench), where the court gave the benefit of exception four to the accused who strangulated his wife with a saria. The wife took some money out of her husband's wallet. He was drunk, got angry, and strangulated her, allegedly in the heat of passion. The factual narration nowhere mentioned that there was an exchange of blows or other forms of violence from the wife's side whatsoever. Despite this, the court upheld that there was a sudden fight and the injury was inflicted without any premeditation. 

All of the above-mentioned cases show how the judiciary has conveniently ignored the element of 'sudden fight' while applying the fourth exception, often whilst quoting from Sridhar Bhuyan where the exception was properly understood. 

Impact of Such Decisions and The Way Forward

The major impact of such application of the exception by the Supreme Court is that it blurs the distinction between 'provocation' and 'sudden fight'. Although it is possible that circumstances could arise where both exceptions could be applied, 'sudden fight' cannot come into play unless the accused and the victim have engaged in a fight; if there is no mutual provocation and blows from each side, the case falls under the ambit of provocation and not a sudden fight. However, the Supreme Court’s application of exception four on many an occasion completely ignores this distinction. 

The plausible reason for a defence lawyer to argue that these cases fall under exception four is because exception one to Section 300 IPC provides for a higher standard of provocation i.e., grave and sudden provocation. The Supreme Court’s application of exception four in these cases not only ignores the statutory requirement of exception four and its rationale but also provides an alternative for those offenders who would have not gotten the benefit of any other exception. 

The problematic application of exception allows cases of cold-blooded murder, not covered under any other exceptions, to take the benefit of this defence by simply putting them under the ambit of murder committed in the course of a sudden fight. Therefore, there is an urgent need to correct the position of law by limiting the application of exception four to only those cases which involve the element of 'fight'. 

Since the Supreme Court, despite recognising the correct explanation and scope of exception four to Section 300 IPC in Sridhar Bhuyan, has failed to correctly apply it in various cases, it suggests there is a need for the legislature to amend the clause by explicitly limiting its scope to only cases where there is an exchange of blows or any kind of violence between offender and  victim. Further, as most of the cases where the exception has been wrongly applied pertain to the cases of domestic violence, an illustration can be added to guide the court in the decision-making process. The illustration could be:

X asks his wife Y to accompany him to his father’s place. Y refuses as a result of which a quarrel starts between X and Y. X, having lost his mental balance, stabs Y and subsequently puts her on fire. This amounts to murder unless Y's words constitute grave and sudden provocation, there being no exchange of blows or any kind of violence by Y.